 Think Tech Hawaii, Civil Engagement Lives Here. My name is Mark Shklav and I am the host of Think Tech Hawaii's Law Across the Sea program. Today my guest is Victor Gemignani. Victor is a lawyer who is planting the seeds of equal justice in Hawaii and we'll explain a little bit more as we go along what that means. Victor spent most of his professional life advocating for economically and socially disadvantaged persons. After graduating from law school, Victor worked for Vista and then in various legal aid society offices on the mainland. He eventually crossed the sea to Hawaii in 1994 to become the head of our local legal aid society. Victor is now the executive director of Lawyers for Equal Justice and is transitioning somewhat out of the position of co-executive director of Hawaii Appleseed Center for Law and Economic Justice. Welcome Victor. Thank you Mark. First of all, I'd like you to tell us what each is, what is Hawaii Appleseed and Lawyers for Equal Justice and explain the dynamics and where they came from. Sure. I'm going to go back in history a little bit because if you understand your history, you'll understand a little bit better about who we are. I love history. Lyndon Johnson created a thing called the War and Poverty in the 60s and he put a lot of money and a lot of effort into designing and implementing an effort to really do something important in terms of raising people out of poverty. He created the legal aid system we have in this country at this point that really funded legal aid systems. So we all started getting funding from the federal government in 66 and one of our mandates was to represent the low and moderate income population when they were confronted with challenges, structural challenges to access services and rights that they had. Well in 1968, 69, 70, 72, we had a Supreme Court headed by Earl Warren that was incredibly sympathetic to the rights and responsibilities of poor people. This is the first time it's ever had happened in our country where we had a legal approach to protecting the rights of low income people, but the bottom line is they came out of the Supreme Court and came out with four, five, seven different opinions that were radical in terms of providing low and moderate income people standing and rights to enforce any system in the state under our state and national constitution. So legal aid programs started doing that. Well in 1980, Ronald Reagan became president and didn't like the idea of legal aid lawyers suing the government on major cases. In fact, we were deeply involved in the Kuala Lumpur issue back in the 70s and Peach Access came from legal aid society in the state. Well that all stopped in the 80s for all intents and purposes and a few programs continued to do that work with separate funding, but in 1996 the Gingrich Congress totally banned us from doing any of that work. So I was director of legal aid society at that point. Yes, in Hawaii and legal aid society of Hawaii had always done the systemic class action advocacy, which is normally done against the government interest and obviously the governments don't necessarily like to be litigated against. On behalf of those who couldn't afford to do it again. Exactly and we win all of our cases and they lose all of our cases and they didn't particularly like that. So the bottom line is. That would be discouraging. Exactly. So Congress eliminated from doing any more of this work. Legal Aid Society of Hawaii I'm extremely proud to say was the first program to challenge that regulation as being against the Constitution First Amendment rights of the people of the state. And we had a faithful judge here, Judge Kay in Honolulu declared unconstitutional. That allowed us to create an affiliate that would be separately funded and separately incorporated and separately staffed that we could do our work from Legal Aid Society of Hawaii now as the father of grandmother and the Lawyers for Equal Justice was created to be the vehicle through which we were able to continue to do plastic. So Congress stopped Legal Aid but the Judge Kay allowed something to run alongside. He allowed an affiliate to be created which was prohibited by the Legal Services Corporation and those affiliates could be created in any Legal Aid program in the country. So it didn't only apply to Hawaii we brought the case but it was precedent for every other program to be able to do what we did. So we created Lawyers for Equal Justice and we ran both organizations Lawyers for Equal Justice and the Legal Aid Society. The Lawyers for Equal Justice was to do those things that Congress said you can't do at Legal Aid. Exactly. And we have a list of cases we can talk about at some point and anybody out there can try to figure out why we shouldn't be able to do these cases. They resonate with everybody in terms of things that shouldn't be brought but for a variety of reasons Congress wanted us out completely of systemic advocacy. So we created LEJ, had some great cases that came along. It got to be around 2003-2004 by the way it was our first case under LEJ class action litigation against the state. Housing authority had been overcharging tenants for about ten years. We were able to, for rent, we were able to recover about 2.3 million dollars only because the statute of limitation only went back six years. So there were rebates given to the tenants in public housing of about 2.4, 2.5 million dollars including their rents being reduced for the next year by about a million dollars because the rents were being calculated in the wrong way. That was our first case. So nobody was helping these tenants? Oh, they were being overcharged then. And they didn't even know. They didn't even know that they were being overcharged. The public housing authority had totally messed up the calculation for rent and had left. Hard to believe the government would have messed up. It's kind of hard but I will tell you more tales as we continue on our other cases that we took. Bottom line is we get to be 208, 209, 210. We've been around now about eight or ten years to be frank with you. It's really hard supporting this kind of litigation. So there are not foundations that support class actions and sometimes you get attorney's fees but a lot of times you don't. For example, one case, the Micronesian Health Care case, we went all the way to the United States Supreme Court for five years. There were no attorney's fees provided even though we were prevailing party for over five years keeping Micronesians with health care during the 209. They were somehow denied because of the England administration. Exactly, the England administration during 208, 209, the recession made a decision to eliminate health care for Micronesians. I was picking on them because they were from Micronesia. It's ethnic associations and you can't do that under our constitution. So that's a classic case that was very long. The state fought, fought, fought and at the end of that rainbow we succeeded for our clients but no money to support ourselves. So I made a decision that we're really going to start to change how we do our advocacy because a great number of issues do not as you know as a lawyer have a legal solution. They have a political solution. So we started to shift a lot of our energy towards things that had political solutions in this state. Our tax system for example is incredibly regressive. It's the second worst in the United States because of how it's framed. It's half of its income from GET and it's highly regressive for low and moderate income people. Our affordable housing is the worst in the United States and we have no plans to ultimately get us out of it. Our food insecurity for our children is close to the bottom. For example, we're 47th worst in the United States and we're using food stamps in the old days and now it's down to 32% because of the case we brought by the way. We were almost the last in the nation during their recession forgetting our people who were eligible to food stamps they were entitled to because the department's practices, departmental services practices were broken. So that is the beginning of me starting to take a look at other funding streams and try to find money that would support our non-litigation advocacy system. So the legal lawyers for equal justice changed their name. Was litigation. Exactly. Class actions. Exactly. Mostly. All class actions. And then you saw a light bulb went off or something and you said... I can't support this system long-term. And there's other avenues maybe and so you wanted to change and find a different entity and that's how the... Exactly. So we've rebranded with a national network. So we rebranded ourselves in Hawaii as not only a litigation program but more importantly, merging into a non-litigation advocacy program and we had the key issues, child nutrition, affordable housing and tax policy that we had running in our favor to be able to indicate how badly our systems are operating in terms of the impact on poor people. Are those issues supported? There are key issues. More than the litigation type issues? Much more. Much more. Because foundations now would be interested in non-litig... Partners, individuals. We just had an artist for Apple Seat event. We raised about $95,000 and most of that money didn't come from people that would support our litigation. It came from people that enjoy our affordable housing agenda, our tax policy economic justice agenda and our child nutrition agenda. So it's a different philosophy entirely and you get people probably from all different walks of life that would support it. Exactly. Is that correct? Exactly. So we basically put most of our energy for a number of years into... into Hawaii Apple Seat because it was growing so vociferously and so many people main landed here wanted to contribute to non-litigation advocacy. In the meantime, we continued to do litigation. So all of the last 10, 12 years, we've done some major, major cases but they have not dominated our publicity and they have not dominated our funding streams. So that's kind of a political choice too. Exactly. In a way, I see. If you fund by government, I've been doing this for 50 years. I've been in the legal services system now since the war on poverty in 1969. I will tell you over and over and over again and I can tell you the woes not only in mainland but here in Hawaii where we get kicked back from the... particularly the finance chair of the house. Big time kickback in terms of some of the cases we've brought. So we have made a decision ultimately to now go back and try to segregate these organizations in a way that made sense. It's a strategic... Exactly, strategic plan and can continue to litigate the cases we've already litigated with hopefully less political kickback here in the state than we've had in the past. Okay, so two different roads I see here. Absolutely. What is each doing and are they splitting apart? Is that what's happening here? I hope not. I've lived through these kinds of permutations a number of times in my life. And the more they're separated, the more there is a isolation of the few people that do our type of work so that you have less communication, you have less coordination, you have more expenses because you have to replicate all of the ingredients you need for staffing, for administrating, but communications to technology, etc. And the collaboration is valuable. Totally valuable. So it's really helpful for us to stay together and this is still under discussion by our board of directors. We likely will continue in the same space. We will likely have staff designated just for lawyers for equal justice for the litigation component of our program and we will work very hard on separate funding streams that will support all of our staff work that has to be done so there will not be any feeling of either potential for retribution from the state if we litigate against them or government in general or private individuals that may be well connected in the state. And we will be able at the same time to attack the organizations by communicating and having potentially the same board of directors so we will have a unifying factor. We'll just have separate funding streams and separate staff. Okay. Going back, what is each doing? What is each doing now? Right now, what are they doing? I am extremely proud of both but let me tell you, with Hawaiiapolis, briefly, we started on an agenda about three or four or five years ago and has to do with food insecurity. We've gotten a significant amount of funding from the Hawaii Community Foundation to create a hunger coalition in our state and that's now ongoing to try to create ways that we could reduce hunger security in a bad way. We're one of the worst in the United States for our kids but for our adults. The second is economic and social justice. We are deeply involved in tax policy modification because if you take a look at what's happening in our state with cost of living and the affordability of housing, the vast number of people that really are desperate for housing, those below 60 or 80% of AMI, technical but basically think low or moderate income people, have the less money to afford a necessitly increase of housing. Especially here, I mean, yeah. Exactly. We're the poster child for affordability. Oh, gotta be the worst. Exactly. We are. And we also pay the lowest salaries in the United States when you factor in cost of living. So your low and moderate income people, that's why you have the homeless problem you have on the street, are so challenged to maintain a viable shelter option for themselves that if their life ever gets disrupted, a handicapped occurs, abuse a problem occurs, and the family is split up, someone loses their job, you are basically on the streets. So affordability of housing became our central plank and we've done a lot of work in that area as well as economic justice. Our economic justice work is primarily through the tax policy advocacy and things like minimum wage and affordable housing. There's a lot of different vehicles, a lot of different ways we're working in affordable housing, both from introducing new models but also advocating in the state, in the county to make sure that the enough money is available for a building of affordable housing and the structural problems like permitting are overcome. So we do a lot of advocacy in those three areas and we're quite visible. We've just created a new budget center for the state and we've gotten a fair amount of funding from foundations in the state to be able to support that for at least three years and that will be a research component to take a hard look at some of the issues that are impacting on low and moderate income people from a budgetary perspective and suggest other ways that other states in the mainland have more successfully used revenues to make improvements in low and moderate income people's lives by accessing programs that really do make sense. Things like school breakfast. And that's the Hawaii Apple Seed? Yeah, that's why Apple Seed will be a separate project. It's called the Hawaii Budget and Policy Center funded by foundations in Bethke Giesting who was Abercrombie's, Neil Abercrombie's transformational director for healthcare is running the center for us. And it sounds like you have support for this. Yes, the foundations and some private individuals have been very liberally generous in making sure we have three years of funding to start this effort. This is an effort that is tied up into 43 other budget centers around the United States is headed up by a group in Washington which is the best think tank for low and moderate income people called the Center for Budget Program Priorities, CBPP. They have organized these centers about 25 years ago. They started. They're now 43. We're the 44th center. So we're joining a massive network of budget centers that really know this work well and will help train us and get us up to speed so we can make a big impact on why our budgets are having problems in terms of meeting the low and moderate income people's needs in this community. Okay, so we've talked a little bit about, well, a lot, but a little bit about the policy roads that Hawaii Appleseed is going down. We're going to take a break for a minute. We'll be back and talk about Lawyers for Equal Justice and where they are going now. Thank you so much for your patience. It's complicated. I appreciate it. It's complicated, but I can understand it which is a good thing. Thank you, Mark. Thank you. Okay, we'll take a break and be right back. Hello, I'm Yukari Kunisue. I'm your host of New Japanese Language Show on Think Tech, Hawaii called Konnichiwa, Hawaii. Broadcasting live every other Monday at 2 p.m. Please join us where we discuss important and useful information for the Japanese language community in Hawaii. The show will be all in Japanese. Hope you can join us every other Monday at 2 p.m. Aloha. Welcome back. I'm Mark Shklov, host of Law Across the Sea with Victor Gemignani. Today, we're talking about planting some seeds of equal justice. And Victor, we were talking when we left about Hawaii Apple Seed and the Japanese Language Show on Think Tech, Hawaii. Welcome back. I'm Mark Shklov, host of Law Across the Sea with Victor Gemignani. We're talking about Hawaii Apple Seed and the policies it's advocating and that it appears to have some support. And why? I mean, who cares? I mean, why should we care about this? What is the result of all this mean? It goes to the fundamental... We talk a lot about values now and the values we're representing to the rest of the world under this current administration. It has to do with our core values. I believe, as a young boy growing up in this country, that this country believed deeply in equal and fair opportunity to succeed for everybody, that the system of justice would be the balancer of equities. And if someone was being mistreated by anybody, including the government, the system of justice, the courts would step in and make sure that they were treated equally. I believe that to my core, that this country is so special and so remarkable and so exceptional when it remembers what its true values are, that we are beacon for everybody because we do provide somewhat an understanding that access to success is possible here. Unfortunately, that access, as you well know, to success requires access to institutions that are normally run by the government, your educational system, your tax system in terms of how much money you have coming in, your employment situation, your justice system, your political system. Those are all systems that ultimately, educational, if I didn't mention, all have to have access so that you can get the benefits and the opportunities that everyone else that has money and has good education can obtain. And that's where poor people come in because most of our systems in this country, for all intents and purposes, we may not want to admit it, but in the hearts, when we go to bed at night, we know it's true. Do not provide equal access to our institutions that are critical. One look at DOE, we'll underline that in our state. One look at our tax policy in our state. We'll underline how much money we take out of low-income, moderate-income people as opposed to those that are wealthy and half of the low- and moderate-income people are paying. So those systems need to be changed. If they're not changed, what happens? Well, you see it all over the world when you have evolution that's not allowed to exercise its needs. It explodes. So if we want this country to really feel its citizenship, its reliefs, and owns our own system and the values that I think we were created under and I hope we still believe and you've got to give the low- and moderate-income people an opportunity to exercise those rights and have advocates like Hawaii, Sweden, and Lawyers for Equal Justice when they have been mistreated by the system illegally and sometimes on Appleseed it's not illegal, it's just bad policy. You have to have advocates to step in and do this. Otherwise, people have no ownership in their government and we see that happening more and more obviously with lots of indicators like voting rolls and dissatisfaction in the country in the direction. And that's where lawyers come in too. I mean, that's the other side of this, isn't it? Lawyers have a purpose here. Perhaps that they didn't know at some point or maybe they know in their core. Now, Lawyers for Equal Justice. Okay. What's it doing? We've heard a little bit about Hawaii Appleseed. Okay. Lawyers for Equal Justice. Where is that now? Well, over the last, we created about 2004, we actually got our first case underway and since then it's been 14 years. We've done about 12 to 15 cases. Most of them, if people, so our case list, they'd all resonate with people. Let me run off a few. The most recent case was a case against the state because the state had ever failed over 25 years since 1991 to make any adjustments illegally, by the way, ignored in the board and care rates that foster parents are being paid. Our foster board parents, our foster board care parents are people who take care of our foster kids. Exactly. They've been abused and traumatized and are going through all sorts of emotional issues at a very young stage in their life. These parents have not been given a raise by the way. They've not been given a raise to support their children since 1991. We brought a case after the foster parents went to the legislature five years in a row, could never get any relief. We finally said enough is enough, we went back in and we litigated. It took us three years to litigate that case. So the parents went for five years to the politicians nothing. And it had been stuck at the same rate, the lowest in the United States, $524 since 1991. The legislature knew, the governor knew this was a problem. They said, oh, we're going to spend our money on something else. In the meantime, our foster care kids will get less and less in terms of the benefits that they're able to continue to achieve. I'm sorry, it makes you think, what did they think? What did they think? Okay, I'm sorry, go on. So the tale gets sadder to be frankly. After three years, the Department of Human Services and the attorney general's office comes to us and say we want to settle this case finally one day before the case was going to settle. We said, of course, we agree with you. We went into negotiations over two weeks and we negotiated a settlement that could have been negotiated day one when the case was filed. And it ended up resulting in about $120, $140 increase in the payment. So they went from $524 to about $640 or $700 depending upon the age of the tile. We go to the legislature, the governor agreed to this, of course also. We go to the legislature with the settlement of $1,000 that they did not fund, that the state already agreed they should have paid just for the future. Forget about the 21 years, 25 years they haven't made any raises, just for the future payment. Forget about the damages. Exactly. Forget about anything. So ultimately they held it up strictly in one committee, the finance committee of the house because they didn't like the attorney's fees that were being charged. And you ask me who pays for this. Sometimes we're able to get attorney's fees. We cut our attorney's fees by 65%. We asked for 65% of what we were entitled to. They refused. I'm sorry, 33% of what we were entitled to. We gave back 66%. I'm not going to charge you for 66%. We had a figure of about 33% of the total amount that we should have gotten for attorney's fees. They wanted it reduced by another $250,000. So the next legislative session that came up this last one, we reduced it by another $250,000 and our family are finally getting taken for one year. They were not allowed to get their benefits for their kids of that $8.3 million, which everyone had agreed was appropriate. That's the kind of kickback we get sometimes from the state. The case before that went on for many, many years. It was the Micronesian Health Care case that the Micronesians were being all healthcare, including chemotherapy and dialysis. And by the way, if you die from dialysis, you're going to die if you don't get a dialysis, you're going to die from the Micronesians here living in Hawaii when the government decided under Linda Leningl to end all the chemo, all dialysis, as well as most other medications. So we litigated against that. And by the way, people were given a two-week notice with a notice that didn't go out in Chuckies or Marshallese. And half of our people had no idea what, in fact, it said. So it took us two weeks to bring that case. We ended up, we got a temporary restraining order in federal court for five years. Luckily, at the end of the five-year odyssey of Barack Obama had created the Affordable Care Act and the Micronesians were able to be folded into the Affordable Care Act. So that was the case we brought before. We've also done K-P-T, Cui Park Terrace, Mayor Wright to the largest and second-largest housing projects that were broken in terms of conditions, admittedly so, front page of the advertiser every year in terms of the disgrace, the $150 million of tax policy, of tax credits going in to restore it, and Mayor Wright on the RP list right now for a new pump after parent story development. We've talked a little bit about those things and you mentioned a lot of times attorney's fees. How do you pay for all of this? In a few minutes we have left, explain how you pay for it, where do you get the money? Do lawyers from the private sector help? How does it work? It's complicated. There was a good part of the time when I ran LEJ and Hawaii Apple Seat I would take deferred compensation for up to a year. I paid about $55,000 a year though after being practicing law for 50 years just to give the economics on the plate. We really ran out of money. I had a volunteer and myself that were managing this project but I would continue to work day after day, month after month waiting for some kind of benefit to be able to support it. When you win a case against the federal government not in all situations or the state government not in all cases but most cases when you're prevailing party and you've reversed some wrong that's been done constitutionally protected you have a right to get a reasonable attorney's fees. So you keep a note of how much you're spending on the time how many hours you did on this how many hours you did in that you submit that to the judge at the end he will then or she will then award a certain amount of attorney's fees. Do they come in? We could not exist without pro bono lawyers. I've mentioned litigation we have done cases that are as I said I can go on and on about the cases we've done highly complex they take a long time to resolve you're looking at lawyers for equal justice and I work half time and I work in a Hawaii opposite also so the only way we can do this work is to find pro bono lawyers in town that will take the lead in this way one firm in particular Austin Hunt Floyd and one lawyer in particular Paul Austin has done the great majority of the litigation we've done on the 10-12 cases we've done we do it with him we often bring in mainland partners for example the foster care case I had a mainland partner one of the largest law firms in the world Morrison and Foster that came in I have a case against the front street departments right now in Maui because they're being deregulated wrongfully so that case is in federal court and I have a major law firm Hogan-Levels I think it's the largest in the United States pro bono counseling on that so I put together teams of people ultimately that can litigate these cases okay now in the 30 seconds we have left for our program you've been doing this for 50 years this is my 50th year what have you learned from all this what can you tell us I can go on for books but things I've learned basically is poor people have rights that most situations are not enforced there's no political benefit to enforcing most of the rights that are violated against low income people and most people influence positions of political power in this country or wanting agencies governmental agencies that are very large sometimes have forgotten that low and moderate income people are the majority of our citizens and they're suffering really badly in this country because their systems are broken and if you I could go on and on about each of the systems and their citizens their citizens in this country and doing born and raised in our islands forget about the ones that came from the mainland or Micronesians born and raised in our islands the people that we represent you have something like a ninth worst poverty rate in the United States when you take a look at the supplemental figures in Hawaii a lot of people that are born and raised here that are just really having a tough time Victor if lawyers want to help you they can contact you at lawyers for equal justice I'll give you a phone number what's your phone number 587-7605 587-7605 and you can also look at the Hawaii Apple seat or lawyers for equal justice either one of the two will get you to one and what we could really use to be frank with you is any financial support they may be able to contribute or any research capability they may be interested in contributing to our program to help us continue to maintain our viability Victor thank you very much real pleasure thank you so much appreciate your time today Aloha everybody we'll be back in two weeks Aloha across the seat program Aloha